Jammu and Kashmir High Court: In a petition challenging the Session Court’s order setting aside the Magistrate court’s order to respondent (husband) to provide safe and secure residence to the petitioner (wife) in the shared household, a single-judge bench of Sanjay Dhar, J., affirmed the Magistrate’s authority to pass interim residence orders under Section 23 of the DV Act to ensure immediate relief to the aggrieved person and restored the Magistrate court’s order granting the residence order.
Factual Matrix
In the instant matter, the petitioner filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act) before the Judicial Magistrate 1st Class and sought relief for alleged verbal, emotional, and physical violence by her husband (respondent) and requested monetary compensation and residential accommodation. The Magistrate court granted an ex-parte interim order on 16-07-2021 under Section 23 of the DV Act, directing the respondent to provide the petitioner with accommodation and protection.
The respondent appealed against this order, but the appeal was dismissed by the Principal Sessions Judge, vide order dated 06-08-2021, however, respondent was given the liberty to seek modification of the order from the Magistrate. The respondent then filed objections before the Magistrate court, who vide order dated 07-12-2021, declined to grant interim monetary compensation but directed the respondent to provide safe and secure residence to the petitioner in the shared household.
The respondent appealed again to the Principal Sessions Judge, Kupwara, where the Court vide order dated 14-12-2022 set aside the Magistrate court’s order and held that residence orders can only be granted after the trial of the main case under Section 12 of the DV Act. Aggrieved by the Principal Sessions Judge’s order dated 14-12-2022, the petitioner preferred the present petition challenging the same.
Moot Point
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Whether a Magistrate can pass an interim residence order under Section 23 of the DV Act before the final disposal of the main petition under Section 12 of the DV Act?
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At what stage can an interim order be passed by a Magistrate in the exercise of his powers under Section 23 of the DV Act?
Legal Provisions
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Section 19 of the DV Act deals with residence orders and can be granted after the trial.
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Section 23 of the DV Act empowers a Magistrate to pass interim and ex-parte orders, including residence orders, if there is a prima facie case of domestic violence.
Court’s Analysis
The Court noted that “a Magistrate has jurisdiction to grant an ex-parte order in favour of an aggrieved person of the nature as provided in Section 18, Section 19, Section 20, Section 21 and Section 22 of the DV Act against the respondent.” The Court held that a Magistrate in exercise of his powers under Section 23 of the DV Act can pass an interim order relating to residence.
The Court examined Section 19 of the DV Act and noted that a residence orders can be passed while disposing of main application under Section 12 of the DV Act, meaning a Magistrate can pass a residence order after the trial of the case, however, when the provisions of Section 19 is read in conjunction with Section 23 of the DV Act, “it becomes clear that while final residence order can be passed by a Magistrate at the time of final disposal of the petition under Section 12 of the DV Act.” The Court held that under Section 23 of the DV Act, a Magistrate has the jurisdiction to pass an interim residence order before the trial’s conclusion if the Magistrate is satisfied that the application discloses a prima facie case of domestic violence. The Court noted that interim relief, including residence orders, is crucial to prevent a woman from being rendered homeless during the pendency of the trial.
The Court emphasised that the object of the DV Act is to provide immediate and effective relief to aggrieved persons facing domestic violence. The Court held that the petitioner was deprived of her right to a shared household due to the impugned order and therefore, the Principal Sessions Judge’s interpretation of Section 19, which led to setting aside the interim residence order, is not sustainable in law and deserves to be set aside.
Court’s Decision
The Court set aside the impugned order of the Principal Sessions Judge and restored the Magistrate court’s order dated 07-12-2021, thereby granting the petitioner the relief of safe and secure residence in the shared household.
[Shameema Begum v. Javid Iqbal Khan, 2024 SCC OnLine J&K 712, Decided on 21-08-2024]
Advocates who appeared in this case :
Mr. Sheikh Manzoor, Counsel for the Petitioner
